Alabama Power Co. v. Hamilton

• Citation: 77 So. 356,201 Ala. 62
• Decision Date: 15 November 1917
• Docket Number: 7 Div. 815
• Parties: ALABAMA POWER CO. et al. v. HAMILTON et al.
• Court: Supreme Court of Alabama

77 So. 356

201 Ala. 62

ALABAMA POWER CO. et al. v. HAMILTON et al.

7 Div. 815

Supreme Court of Alabama

November 15, 1917

Rehearing Denied Dec. 24, 1917

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Action by G.F. Hamilton and others against the Alabama Power Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

See also, 195 Ala. 438, 70 So. 737.

General rule that all parties plaintiff must recover, or none can has no application to suits on injunction bonds by obligees for the benefit of other obligees who have not had settlement.

That some of nominal plaintiffs had recovered damages of defendant under injunction bond given pursuant to Code 1907, § 4517 would be no bar to action in name of all plaintiffs for use of others, who had employed separate counsel in securing dissolution of injunction.

Knox, Acker, Dixon & Stewart, of Talladega, O.R. Hood, of Gadsden, and Thomas W. Martin, of Birmingham, for appellants.

Riddle & Burt, of Talladega, for appellees.

THOMAS J.

This suit was commenced in the circuit court of Talladega county, in the names of 706 plaintiffs, for the use of 289 of the named plaintiffs, to recover damages the natural and proximate result of the suing out of the injunction.

As originally filed on December 16, 1915, the complaint was in the names of "G.F. Hamilton and others," the names of the plaintiffs other than Hamilton not being stated, and was against the Alabama Power Company and the United States Fidelity & Guaranty Company as defendants. When the cause came for trial, the complaint was amended at plaintiffs' instance, by stating the names of all the plaintiffs, they being all of the defendants in the injunction suit. A recital of the names of these plaintiffs embraces ten pages of the record; many of them being minors suing by next friend. As last amended, the complaint contained one count and a copy of the injunction bond incorporated therewith as an exhibit.

Defendants' demurrers being overruled, pleas from 1 to 11, inclusive, were filed. Demurrer was sustained to all of said pleas except pleas 1 and 2 of the general issue and pleas 10 and 11 of satisfaction and discharge of plaintiffs' claim by payment. There was judgment for plaintiffs.

The bond on which the suit was brought being in statutory form, it will be necessary that we consider the construction of the statute providing for a bond payable to the party against whom an application for injunction is granted. Section 4517 of the Code of 1907. This section of the Code was framed pursuant to the amendment made by the act of February 27, 1889 (Gen.Acts 1888-89, p. 116), to section 3524 of the Code of 1886, and gave the right of action "to any person who may sustain damage by the suing out of such injunction if the same is dissolved."

Of the bond we may observe that though it was payable to G.F. Hamilton by name, yet by its terms it was payable to "the other defendants in the above-entitled cause," which cause was that of the Alabama Power Co. v. G.F. Hamilton et al.--the 706 defendants to the bill in which injunction was issued, the plaintiffs here, with about 400 others, who were the defendants named therein. By this bond the Alabama Power Company, as principal, and the United States Fidelity & Casualty Company, as surety, were--

"held and firmly bound unto the said G.F. Hamilton and the other defendants in the above-entitled cause [Alabama Power Co. v. G.F. Hamilton et al., Defendants] in the sum of $15,000. *** The condition of the above obligation is such that, whereas the said Alabama Power Company heretofore filed its bill of complaint in the chancery court of Talladega county, Ala., and has obtained thereon a fiat from Hon. W.W. Whiteside, chancellor of said court, for the issuance of a temporary injunction to restrain and enjoin the said G.F. Hamilton and the other defendants in said cause, their agents and attorneys, from prosecuting their suits at law described in said bill, now pending in the several courts of the state of Alabama, therein set forth, and from instituting and prosecuting other like suits against the complainant: Now, therefore, if the said Alabama Power Company, or its successors or assigns, shall pay or cause to be paid all damages and costs which any person may sustain by the suing out of such injunction, if the same be dissolved, then this obligation shall be void; otherwise it shall remain in full force and effect."

The evidence showed that the injunction had been dissolved by decree of the Supreme Court rendered upon the appeal from the decree granting the injunction (Hamilton et al. v. Alabama Power Co., 195 Ala. 438, 70 So. 737); that the 289 plaintiffs for whose use this suit was brought had employed attorneys to defend the injunction and to procure its dissolution, and had agreed to pay such attorneys a reasonable fee for their services in that behalf; that the several firms of attorneys of which D.H. Riddle was the senior member were those employed by the said 289 plaintiffs, the real parties plaintiff in interest in this suit; that each one of said real plaintiffs separately employed Riddle's firms in said suits, and that they were not interested in the said several suits of the other 400 and more plaintiffs, pending in the several courts of the state against the said Alabama Power Company; that, though the appeal from the order granting the injunction was taken to the Supreme Court in the names of G.F. Hamilton and others in the chancery suit, it is nevertheless a fact that much of the services performed in dissolving that injunction were rendered by the firms of attorneys of which D.H. Riddle was the senior member, representing the said 289 defendants in the injunction suit, the real plaintiffs here, on appeal to this court; that the suit at bar was filed on behalf of these 289 plaintiffs in the circuit court of Talladega county on the day the application for a rehearing in the Supreme Court was overruled and the injunction dissolved; and that Talladega county was where the suit was filed in chancery and the injunction secured.

The evidence showed without conflict that the defense of this injunction suit in behalf of the said 289 plaintiffs represented by Riddle's firms was conducted in person by the senior member of the firms, said D.H. Riddle.

The defendants offered in support of their pleas of payment a receipt for part payment given by J.C. Burt, a junior member of one of said Riddle's firms of attorneys. This receipt was in the following language:

"G.F. Hamilton et al., Plaintiffs, v. Alabama Power Company, Defendant. In the Circuit Court of Talladega County, Alabama. Received of the Alabama Power Company, the defendant in the above-entitled cause, the sum of nine hundred dollars ($900.00) in part on account of the damages and costs sustained and suffered by the said plaintiffs by reason of the suing out of the injunction by the said Alabama Power Company in the case of Alabama Power Company v. G.F. Hamilton et al., in the chancery court of Talladega county, Ala., which injunction was lately dissolved on the appeal taken in said cause to the Supreme Court of Alabama. This March 30, 1916. J.C. Burt, One of the Attorneys for Said Plaintiffs."

It appears without conflict, shown by the testimony of D.H. Riddle in rebuttal, that the said D.H. Riddle, senior member of the firm, or one of said firms of attorneys with Burt, "knew nothing about the receipt signed by J.C. Burt"; "did not know anything about it until yesterday when the case was called" and the trial entered upon. The defendants offered no other evidence of payment to Riddle or to his firms, or to any of he said 289 clients, plaintiff defendants, represented by him in said suits by and against the Alabama Power Company.

The evidence further shows without conflict that certain of the defendants in the injunction suit, as nominal plaintiffs in this suit for damages against the Alabama Power Company, who were represented by attorneys other than D.H. Riddle and his firms, were paid their respective damages suffered by the suing out of said injunction writ; that said defendant plaintiffs, the 289 represented by D.H. Riddle and his several partnerships, were not paid their damages sustained by the suing out of the injunction writ, except as represented by the receipt of J.C. Burt for $900. The evidence further shows that the present suit was brought in the names of all the defendants, obligees in the injunction bond, for the use, and only for the use, of each of said 289, who were also defendants in the suit in which the injunction issued, to recover on the injunction bond their respective damages incurred by the issuance of the writ of injunction.

The damages sustained, by way of reasonable attorneys' fees incurred as the natural and proximate result of the suing out of the injunction writ, and subject to recovery by any person so damaged, when the injunction was dissolved, were fixed by the several witnesses at amounts varying from $5,000 to $35,000; three witnesses, who were not of counsel in either of said causes, being of the opinion that such legal services were reasonably worth $15,000. To say the least of it, the evidence was ample to support the verdict of the jury as to the reasonable value of the services rendered by D.H. Riddle and his firms in the dissolution of the injunction.

The insistence of the defendants, in short, was that, as many of the obligees in said bond had been paid their respective damages by the Alabama Power Company, and suit was resorted to by some of the obligees or defendants to collect their respective damages, these real plaintiffs, suing in the names of all the obligees, as plaintiffs suing for their use, may not now recover. This...